Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs S&S Power Switchgear Ltd on 20 May, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/54/2003
[Arising out of Order-in-Appeal No.167/2002(M-II) dated 20.11.2002 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Central Excise,
Chennai
Appellant/s
Versus
S&S Power Switchgear Ltd.
Respondent/s
Appearance :
Shri V.V.Hariharan, JCDR Shri A.R.Jayaprathap, Advocate For the Appellant/s For the Respondent/s CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Mr. P. Karthikeyan, Member (Technical) Date of hearing : 29.5.2009 Date of decision : 29.5.2009 Final Order No.____________ Per P.Karthikeyan This is an appeal filed by the Revenue. Vide the impugned order, the Commissioner (Appeals) vacated the order of the original authority confirming a demand of Rs.13,22,608/-, imposing equal amount of penalty under Section 11AC of the Central Excise Act, 1944 (the Act) and further penalty of Rs.1,30,000/- under Rule 173Q of the Central Excise Rules, 1944. The original authority had also demanded interest of Rs.56,492/- under Section 11AB of the Act. The duty had been voluntarily paid before issue of Show Cause Notice. The demand had been raised towards credit availed by the respondents M/s.S&S Power Switchgear Ltd. on receipt of certain inputs in their Porur unit which they had not reversed at the time of their removal to their Pondicherry unit during the material period. Had they reversed the credit initially availed at the time of removal of the inputs to their sister unit, the sister unit would have instantly availed the credit of duty paid on removal of the inputs. Therefore, the situation was revenue-neutral. In vacating the demand and penalty, he had followed the ratio of the Tribunals decision in the case of Jay Yuhshin Ltd. Vs CCE New Delhi, 2000 (119) ELT 718 (Tri.-LB). In the appeal filed by the Revenue, the impugned order is sought to be vacated on the basis that paying duty due before issue of the show-cause notice was not adequate ground to set aside the penalty imposed under Section 11AC. It is submitted that demand of interest could not have also been vacated on account of voluntary payment by the assessee.
2. We have heard both sides. We find that the impugned order has been passed by the Commissioner (Appeals) following the ratio of a larger bench of the Tribunal reported in 2000 (119) ELT 718 (Tri.-LB). The situation was revenue neutral as the sister unit of respondents could have availed credit of the duty had the respondents paid it at the time of removal of inputs. Therefore, intention to evade duty could not be attributed, nor larger period invoked under Section 11A, penalty imposed under Section 11AC and interest demanded under Section 11AB. In the appeal filed by the Revenue, it is not pointed out as to how the decision of the Tribunal relied upon by the Commissioner (Appeals) is not applicable to the facts of the case. We find that the Commissioner (Appeals) has correctly followed the decision of the Tribunal in passing the impugned order. We do find that the impugned order does not call for any interference.
3. In the circumstances, we reject the appeal filed by the Revenue as devoid of merit.
(Dictated and pronounced in open court)
(P.KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE-PRESIDENT
gs
1
2